How startups should deal with innovation trolls and vampires

Russian company Intersoft Eurasia
(DO-RA Project developer, DO-RA is a personal dosimeter-radiometer, compatible
with smartphones on various platforms) announced its victory in the patent war
for the manufacture of the DO-RA devices and start of its mass production.
After five years of confrontation and trials, number of
technical examinations, which were made with participation of the leading
universities of the country, the Intellectual Property Court rendered a
judgment in favor of Intersoft Eurasia. Intersoft Eurasia CEO and Head of the
DO-RA Project, PhD, Vladimir Elin gave an exclusive interview for
“Invest-Foresight” business magazine about the key principles of the war with "patent
trolls" and how to protect rights in the international market of
intellectual property.

– Vladimir, what is the history
of your personal "war with the trolls," and what is the final?

- In our case, the war with the patent trolls
ended with a completely successful outcome, despite the fact that it was not
possible to prove the fact of creating a competitive patent which is in fact
based on one of our basic patents and our earlier publications and prototypes
that had a widespread public dissemination. In more detail, I talked about this
in an article: "The history of DO-RA patent war." I can only add: for
inventors, such wars are not only harmful, but, in a certain sense, useful. In
intellectual battles, you start to understand how important all aspects of the
invented product are, as outlined in the clauses of Invention Formula. And if
luck, truth and qualification in the field of invention are on your side, then
as a bonus from a patent dispute you can get the decision of the Intellectual
Property Rights Court (IPR Court), confirming the inviolability of your
patents. And the fact of winning such a dispute can itself raise the price of
capitalization of intellectual property expressed in intangible assets in the
form of patents, certificates of inventions, trademarks and brands, prototypes
and industrial designs.

– In the era of globalization and development of
the digital economy, what are the main threats facing the inventor as the
bearer of intellectual property if he wants to enter the international level?

–
The main threats to the inventor in the era of scientific and technological
progress, I see in accelerating competition on the basis of the already
invented and actually able to improve not in a year, two, three, as it was
before, but almost every quarter of the year. In the modern R&D centers,
computerized systems with elements of artificial intelligence (AI), capable of
greatly facilitating the work of engineers and designers, are operating in a full
swing. And they are playing the key role for the inventors, as an engine and accelerator of scientific and technological
progress. Another aspect of the threat to creators and
carriers of intellectual property in the development of the digital economy is
a disdainful attitude, in fact, to proper registration of this property. Many
inventors still believe that if they take their inventions to the
"know-how" category and protect them with corporate documents about
commercial secrets, no one can quickly get to their essence. Alas, this is a
deeply erroneous and unconstructive point of view. Our foreign
"brothers" with the help of high-tech stands, powerful computers and
other wisdoms of the modern world, click such "know-how" for weeks,
and create prototype for a few days. Therefore, it is worthwhile to go
initially along the line: an application for a Russian patent and an
international PCT application, and further registration of intellectual
property in key jurisdictions of the world.

Художник: Юрий Аратовский

–Patent trolls and vampires - who are they?

–
There are several types of patent trolls, in my understanding. And in certain
situations, they can act in different ways - like the "orderlies of the
forest", like vampires, even as creators and engines of the progress.

The
first type of such people can be provisionally called "Robin Hoods".
These are typical and usually not really rich (both in terms of intellectual
property and material assets)
individualists who have at least one or two or more patents of a general
application. For example: "a protocol for transmitting a signal in various
ways or methods from analogue to digital, from one device to another or group
of devices, etc.". Their main mission is not to create a prototype or
serial model of the invented, but to sit on the tail to another inventor with
similar technologies, but already producing their products on their basis. In
the extreme case - to get hooked on the salary to a shaking inventor colleague,
convincing that this third-party patent can ruin him.

Another
type of trolls can be called "promo-trolls". Usually there are
several people, they can have a lot of experience and a certain material
potential. Patents for useful models and images in such a group can be dozens,
or even hundreds. These trolls often copy, with minor improvements, other
people's designs, adding to them some kind of versatility, for example,
"fly swatter" with a fan function, and begin to produce quickly,
mainly getting a material profit from sales. At the same time, sometimes they
make raids on other people's similar patents. These can sometimes be both
harmful and useful to society: if they produce innovative products quickly and
inexpensively.

And
the third category of patent trolls is "connected by one chain".
These are professional associations of lawyers, patent experts, inventors and funds,
in a well-coordinated team attacking different goals. They extract the rent
from the oversights of the owners of patents and inventions, launched into
large-scale production in the form of specific products (again, it is worth
recalling the trial of Apple
against Samsung).

– What is their arsenal of
funds? What becomes the primary target of the attack?

–
Arsenal of funds to achieve the goals of trolling is relatively small. They are
lawyers and technical experts of the community, they get financial support for
patent trolling in the form of funds and a psychological attack through the
media. As a rule, people or companies that own patents become targets for
patent trolls through a "window of opportunity", to be more precise,
holes in a patent for a utility model are weaknesses, less often holes in the
invention. Sometimes trademarks and industrial designs fall under trolling. But
it always happens when there is something to take from whom to take - that is,
with a well-promoted industrial production with controversial signs of novelty
or explicit elements of copying someone else's technology.

– How can an inventor recognize
that he is a victim of a "patent troll"?

– The patent troll finds you by himself, as
in the well-known meme: "Now we are coming to you"! Because the
service of patent attorneys for these guys is usually at an altitude, as it
forms the basis of business. Their specialists constantly monitor the patent
landscape, and technical personnel analyse those areas of scientific and
technical progress, where there is a high production potential with a massive
introduction of products for patents of a similar confusion. And here comes a
letter with approximately the following content: "You are violating the
rights of such a patent holder, and according to the article of such and such a
code, you have to regulate the relationship in a non-judicial order. And if you
do not agree to do this, the cost of the claim for material damage will be so
great that you will regret that you have not settled all formalities with us at
this stage. "

– And how to defend yourself?
Is there any universal tool or, in your opinion, in each case the inventor is
forced to work under a new scenario?

–
First of all, do not despair about the patent troll's attack: they are also
people with their weaknesses. This challenge of fate is to be taken as the
"heavenly manna" for the fact that "intellectual
filibusters" honoured you with your patent. By the way, this is a good
sign: the patent troll attack speaks about the prospects and usefulness of the
invention for people. Firstly, you must rely on qualified patent specialists,
preferably with considerable experience in your area of ​​expertise. This
decision will help to repel at least the first series of attacks of trolls. If
this recommendation does not help you beat off the first raid, be patient and
look for qualified intellectual property lawyers in a team with the patent
specialists already in your company. Now you will be able to get even for
"hitting" your patents through IPR Court in an open struggle for
intellectual rights!

In
this life, there is nothing universal for the battle with patent trolls. Each
case is quite unique. What exactly works - is the constant improvement of one's
own qualification and developments. This will help the "intellectual
filibusters" never catch up with you.

– In your experience: to what
extent are the existing administrative and judicial systems ready (and able) to
protect the inventor?

–
If you will follow the right path when a patent incident occurs, namely, first
step is to apply for the Patent Disputes Chamber under Rospatent (now the Federal
Institute of Industrial Property (FIPS)). This usually takes from 3 to 6
months, and sometimes even a year. And only in case of refusal you should go
straight to the Intellectual Property Rights Court (IPR Court). This also takes
from 3 to 6 months, but the time until the victory or loss will be minimal,
while the cost of patent war - the optimal. In general, assessing the personal
experience of the five-year "patent war", I think: IPR Court is the
instance that the inventors really lacked so much in the practical resolution
of disputes over intellectual property. By the way, the IPR Court was created
quite recently - in 2013, but it was the institute that occupied the key place
in the intellectual property protection system for inventors and patent owners.